Article 69 EPC sets out that the extent of protection conferred by a European patent shall be determined by the terms of the claims. The purpose of the Protocol on interpretation of Article 69 EPC is to make clear that the extent of protection conferred is not limited to the strict literal meaning of the terms of the claims. Article 69 EPC and its Protocol do not provide a basis for excluding what is literally covered by the terms of the claims. Applying this to the present case, the Board considers it inconsistent with proper claim interpretation to read into the claim a particular meaning for X which only appears in the description and then to rely on this feature to provide a distinction over the prior art (see T 881/01, point 2.1, not published in the OJ EPO).

The protocol for interpretation of Article 69 states:

Article 69 should not be interpreted in the sense that the extent of the protection conferred by a European patent is to be understood as that defined bythe strict, literal meaning of the wording used in the claims, the descriptionand drawings being employed only for the purpose of resolving ambiguity found inthe claims. Neither should it be interpreted in the sense that the claims serveonly as a guideline and that the actual protection conferred may extend to what,from a consideration of the description and drawings by a person skilled in theart, the patentee has contemplated. On the contrary, it is to be interpreted asdefining a position between these extremes which combines a fair protection forthe patentee with a reasonable degree of certainty for third parties.

"This case provides a good example of how Article 69 is used in practice and that the scope of European patents is governed by what is in the claim. . . and does not allow a patent holder to add aspects from the specification," comments Whymark. "This approach differs from the approach adopted in the US, where the claims are generally interpreted in light of the specification."